Are Undocumented Immigrants Protected by Employment Laws?

 Posted on November 12, 2014 in Immigration

One of the biggest bones of contention in the American immigration debate is the question of which laws, if any, apply to undocumented immigrants. Some of the most hotly debated are unemployment laws. Additionally, one question is frequently asked: Are the undocumented protected by laws like minimum wage and overtime restrictions? The answer, at least in a general sense, is yes.

On-the-Job Laws

The first laws that often come to mind when discussing employment are the minimum wage laws and the regulations that govern overtime. However, there are many others, almost all of which we interact with on any given work day without noticing, such as the Occupational Safety and Health Administration (OSHA) standards for workplace safety. All of the major ones do apply to undocumented immigrants.

In Illinois, the minimum wage for those over 18 years old is $8.25 per hour. Illegal immigrants may not be deprived of minimum wages, and there is nothing in the law that restricts that right to the legally present. Overtime pay is also permitted, if only because there is no exemption in the Fair Labor Standards Act (FLSA) that sets undocumented immigrants apart.

It is also worth noting that in this state, there are strong protections for day laborers, which is an industry that includes a disproportionate amount of undocumented immigrants. Day and temporary labor agencies must be registered with a state agency, and they may not, under any circumstances, deduct pay for expenses like meals or transportation. Such deductions are patently illegal.

Anti-Discrimination Provisions

One of the most common issues facing the undocumented immigrant on the job is discrimination. By law, undocumented immigrants are not permitted to work, but many find jobs as day laborers or in other industries that are not necessarily well-policed. Within those industries, however, they are vulnerable to exploitation and discrimination.

Employers understandably must discriminate on the basis of immigration status if only because they are subject to heavy penalty if they are found employing the undocumented. However, they are not permitted to single out or harass anyone on the basis of status. Title VII of the Civil Rights Act of 1964, one of the nation’s pivotal employment laws, extends to anyone “employed by an employer” and prohibits actions like harassment and retaliation. The undocumented are also entitled to workers’ compensation in many states, with the rationale being that their contributions toward it have been taken out of their paycheck all along.

That said, there are certain remedies in law that undocumented immigrants are not entitled to receive, at least when seeking redress of grievances. In Hoffman Plastic Compounds, Inc. v NLRB, 535 U.S. 137 (2002), for example, an undocumented immigrant who had been laid off for union organizing sought redress in court. The Supreme Court found that the Immigration Reform and Control Act of 1986 (IRCA) rendered the punitive consequences of Hoffman’s actions unusable. IRCA penalizes undocumented immigrants for certain actions—one of which is getting work or attempting to do so. Thus, the man was denied what would normally be traditional remedies, such as back pay from the date of his firing.

Contact an Immigration Attorney

If you are undocumented and feel you are being discriminated against, we may be able to assist. Mevorah & Giglio Law Offices has a long history of success in immigration matters. Contact our Illinois immigration attorneys at our DuPage County office today to schedule a consultation.